The Supreme Court has found that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 is incompatible with Article 11 – the freedom of assembly and association – of the European Convention on Human Rights.
Five judges unanimously decided to allow an appeal in the case of Fiona Mercer, a support worker in the care sector and a workplace representative of Unison. Mercer had been involved in planning, and took part in, strike action. She was suspended by her employer Alternative Futures Group Ltd (AFG), receiving normal pay but nothing for the overtime she would have normally worked. The effect of her suspension, ‘if not the purpose… was also to remove her from the workplace while the industrial action was in progress’, the judgment states.
Mercer took her case to an employment tribunal, arguing the decision to suspend her was taken for the sole or main purpose of preventing or deterring her from taking part in an independent trade union’s activities. AFG argued it had suspended her because she abandoned her shift and spoke to the press without permission.
The tribunal held, as a matter of domestic law, that section 146 of the 1992 act does not extend protection to participation in lawful strike action. The tribunal’s decision was reversed by the Employment Appeal Tribunal. The government successfully appealed, and Mercer brought the case before the Supreme Court.
The judgment by Lady Simler, with whom lords Lloyd-Jones, Hamblen, Burrows and Richards agreed, states: ‘There may be circumstances where it is permissible to impose a detriment for participating in lawful strike action where employees have necessarily acted in breach of contract, particularly where the manner of the breach is harmful or disruptive. However, it does not follow that in a private sector case where sanctions short of dismissal are imposed to deter lawful strike action, the state has no positive obligations at all.
‘On the contrary, the legislative scheme must strike a fair balance between the competing interests at stake and any provision of the scheme that restricts the protection of article 11 rights must be justified, recognising the margin of appreciation to be accorded to the state.’
The judge expressed ‘some sympathy’ for the Court of Appeal’s conclusion ‘that the failure in this case results from a lacuna in domestic law generally rather than from the intrinsic incompatibility of section 146’.
She added: ‘I am persuaded that section 146 is the only provision which limits the common law in this context and has the implicit effect of legitimising sanctions short of dismissal imposed for participation in a lawful strike, thereby putting the UK in breach of Article 11.’
Though s146 is incompatible with Article 11 the case was not one ‘where it is inappropriate to make a declaration of incompatibility’, she said.
The judgment added: ‘The ultimate legislative solution to the problem identified in this case may call for enquiry. Questions of policy will have to be addressed and evaluated, their practical ramifications considered, and a fair balance struck between all the competing interests at stake. But the existence of policy choices in the means of giving effect to the lawful strike rights protected by Article 11 is a reason in favour of making a declaration of incompatibility, not refusing one.’
Allowing the appeal, the judge said: ‘I would make a declaration… that section 146 of TULRCA is incompatible with Article 11, insofar as it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action’.
Mercer said she was ‘delighted’ with the decision. She added: ‘Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff.’ Unison general secretary Christina McAnea said: ‘This is the most important industrial action case for decades. It’s a victory for every employee who might one day want to challenge something bad or unfair their employer has done.’
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